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Ambrose v. Astrue

March 31, 2009


The opinion of the court was delivered by: Hurley, District Judge



Plaintiff William J. Ambrose ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied his claim for disability insurance benefits ("DIB"). Presently before the Court are Plaintiff's and Defendant's motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). For the reasons discussed below, both motions are denied and the case is remanded for further administrative proceedings.


I. Procedural Background

Plaintiff applied for disability benefits on May 16, 2005 alleging disability since May 16, 2004. (Tr. 19, 45, 52, 58, 237-38.)*fn1 His claim was denied on July 23, 2005 (Tr. 46-49.) Plaintiff filed a timely request for a hearing, and on March 12, 2007, appeared with counsel at the administrative hearing held before Administrative Law Judge ("ALJ") Michael S. London. (Tr. 22, 34, 230-54.)

ALJ London issued a decision on March 27, 2007 denying Plaintiff's claim. (Tr. 16-23.) The ALJ found that Plaintiff was not under a disability as defined in the Social Security Act at any time through the date of the decision. According to the ALJ, Plaintiff "is severely impaired by lumbar disc disease with a herniation at L2-3, but retains a residual functional capacity for sedentary work . . . [although] precluded from performing his past relevant heavy work as a plumber." (Tr. 21.)

Thereafter the matter was appealed to the Appeals Council who declined to review the matter. (Tr. 4-6.) This action ensued.

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on July 15, 1962. (Tr. 233.) He graduated high school and attended two years of community college. (Tr. 8.) He is single and lives with his mother. (Tr. 234, 246.)

For approximately twenty years, from 1984 to May 2004, Plaintiff worked as a plumber. (Tr. 234.) Plaintiff testified that on January 26, 2004, he felt a "pop" in his back while lifting a rigid 300 pipe threading machine. (Tr. 234-35). After this incident he tried to continue to work but missed a lot of time due to the pain; he finally stopped working in May 2004. (Tr. 237.)

Plaintiff described his pain "like there is a hot knife stuck in my back actually and the pain radiates into my groin, into my hamstring areas on both legs." (Tr. 238.) He described his conditions as having gotten worse since the injury and his pain as constant. (Tr. 240.) He underwent physical therapy for eight months and three epidural injections but testified that neither provided relief from the pain. (Tr. 241-42.) At the time of the hearing, he was taking Vicodin "maybe once or twice a week" as well as taking Skelaxin. Before the Vicodin he was taking Darvocet. He stated the pain killers "don't really help" and make him lethargic and constipated. (Tr. 244-45.)

Plaintiff discussed surgery with his treating physician but was told that the surgery would preclude him from working because he would not be able to bend after the insertion of the rods. (Tr. 243.)

Plaintiff testified that he is able to walk three blocks after which he has a lot of pain. (Tr. 245.) He reports he can sit comfortably for about 15 to 20 minutes and stand for 20 minutes. (Tr. 246.) He spends his day reading the newspaper, and watching television and movies; he has no hobbies. (TR. 246-48.) He stopped playing softball several years before his injury. He no longer swims, goes to the beach or attends sporting events because of his injury. (Tr. 247.)

B. Medical Evidence - Treating Physicians

1. Dr. John Rothar

Dr. John Rothar treated Plaintiff on January 29, 2004 when Plaintiff reported that he injured his back at work lifting a 200 pound pipe cutter. Dr. Rothar prescribed anti-inflammatory medication (Vioxx) and a muscle relaxant (Skelaxin) and told Plaintiff to stay out of work until February 2, 2004. (Tr. 111-112.) Dr. Rothar's notes indicate that he saw Plaintiff on April 21 and May 19, 2004 but the treatment notes are illegible. (Tr. 115.) Dr. Rothar did, however, complete a Workers' Compensation Board "Attending Doctor's Report" for the April and May visits indicating that Plaintiff was not disabled from his regular duties. (TR. 113-14.) Dr. Rothar also completed a disability questionnaire on June 2, 2005 based on the above visits. On the questionnaire, he indicated he could not provide a medical opinion as to Plaintiff's ability to do work-related activities, although he indicated "unable to sit longtime; altered standing." (Tr. 116-21.)

2. Dr. Vincent Leone - Orthopedic Surgeon

Plaintiff's first visit to Dr. Leone was on June 16, 2004. Dr. Leone's examination of Plaintiff revealed the following: right paravertebral muscular spasm; full motor strength; normal sensation; range of motion was full to flexion and extension; lateral tilt ability limited to twenty degrees to the right but full to the left; and reflexes equal and symmetrical to knee jerk and ankle jerk testing. Dr. Leone reported that x-rays of Plaintiff's lumbar spine showed mild degenerative changes. According to Dr. Leone, Plaintiff "continues to be totally disabled." (Tr. 157-58.)

Plaintiff returned to Dr. Leone on July 19, 2004, to discuss his MRI. According to Dr. Leone, the MRI showed an L2-3 left far lateral disc herniation with no significant central compression, which Dr. Leone considered helpful as it accounted for Plaintiff's symptoms. Dr. Leone did not think surgery or steroid injections were appropriate and recommended conservative treatment and physical therapy. (Tr. 156.)

Dr. Leone saw Plaintiff again on August 28, 2004, and found he continued to show limited range of motion and mildly positive tension signs to lower extremity. Dr. Leone gave him a prescription for physical therapy and found Plaintiff "continues to be disabled regarding any work until he completes his course of therapy." (Tr. 155.)

On October 25, 2004, Plaintiff returned to Dr. Leone complaining he continued to be sore and had some neck stiffness and weakness in the shoulders. Dr. Leone's physical examination of Plaintiff's lower back revealed no change. He noted he would attempt to get approval for acupuncture for pain management and that Plaintiff wanted to defer epidurals at that time. (Tr. 154.)

On his return to Dr. Leone on December 20, 2004, Plaintiff complained of worsening symptoms with increased spasms on the left and reported pain radiating into the back of the thigh to the knee. Plaintiff denied any new trauma. The physical examination revealed the following: right paravertebral muscular spasm; reflexes diminished to the right ankle jerk to 1/4 compared to 2/4 on the left; knee jerks were 2 bilaterally; a restricted range of motion secondary to pain; and mildly positive tension signs on the left. Dr. Leone obtained x-rays which showed degenerative disc disease and paravertebral muscular spasm. His diagnostic impression was lumbar herniated disc with radiculopathy. Dr. Leone ordered a new MRI. (Tr. 153.)

Dr. Leone next saw Plaintiff on February 14, 2005, at which he reviewed the result of the MRI. The MRI showed an L2-3 left-sided herniation without interval change and multilevel degenerative disc disease. According to the doctor, Plaintiff's overwhelming problem was "back pain over leg symptoms." Dr. Leone's notes indicate he discussed operative versus non-operative treatment and that Plaintiff wanted to avoid epidurals or surgery. According to the doctor, Plaintiff continued to be disabled regarding work. (Tr. 152.)

Plaintiff saw Dr. Leone again on April 23, 2005, complaining of continued back pain with radiation down his left leg and newfound radiation down the right leg. Dr. Leone's examination found a range of motion which was full to flexion, extension and limited to lateral tilting in the lumbar spine. Plaintiff's motor strength was 4/5 throughout, his sensation was intact, and he had a positive straight leg raise test on the left and the right. Dr. Leone noted that Plaintiff, having failed a full course of conservative treatment, was considering surgery and, also, Plaintiff continued to be disabled. (Tr. 151.)

Plaintiff returned to Dr. Leone on June 8, 2005, complaining of back soreness with radicular symptoms in the leg and that sitting was most difficult. The physical examination revealed no interval change. Dr. Leone's notes indicate he discussed with Plaintiff the need for a pre-operative MRI and, if the MRI was positive, the need for a microlaminotomy discectomy and that he should continue to be out of work until the updated MRI was obtained. (Tr. 150.)

When Dr. Leone saw Plaintiff again on July 20, 2005, the physical examination showed no change. (Tr. 149.)

On September 2, 2005, Plaintiff saw Dr. Leone at which time the results of the MRI were discussed. According to Dr. Leone's notes the MRI showed a left-sided focal herniation at L2-3 and degenerative disease at L3-4 which did not corroborate Plaintiff's right-sided symptoms. Dr. Leone recommended that surgery be suspended and Plaintiff have a detailed neurologic consultation with a Dr. Murthy. (Tr. 148.)

Plaintiff returned to Dr. Leone on September 8, 2005, complaining of persistent symptoms and worsening back pain, along with leg symptoms. Dr. Leone's examination revealed restricted range of motion and intact neurological findings. X-rays showed significant degenerative disease at L2-3 and L3-4 which worsened and no ...

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